Defeating Economic Sanctions in theEU: A Strategic Analysis of LitigationOptionsArnoud WillemsAlessandra Moroni*
Economic sanctions; European Union; International Court of Justice;International trade
AbstractSanctions are part of the UN toolbox to secure international peace and security.States are also increasingly relying on sanctions to pursue foreign policy objectives.It is noteworthy that both the UN and the EU have been gradually shifting fromsanctions against states to sanctions targeting specific individuals and entities.However, targeted sanctions follow highly politicised procedures with littletransparency; the criteria on which targeted sanctions are based risk either notbeing provided, or being too broadly and ambiguously phrased. This article reviewsthe mechanisms available to targeted individuals and entities to challenge thelegality of sanctions. It starts with the experience that has matured before the EUcourts to assess the current state of affairs and the limits this litigation mayencounter. It then identifies alternative strategies to litigate sanctions, includingby raising new claims based on criminal practice and using different legal forasuch as the ICJ.
IntroductionSanctions of an economic nature are deemed to entail “the deliberate,government-inspired withdrawal, or threat of withdrawal, of customary trade orfinancial relations”.1 As such, sanctions are primary instruments for deterringbehaviour that is perceived as inconsistent with the international legal order, andhave long played a key role in securing peace and order internationally.2 States
*Arnoud Willems and Alessandra Moroni are lawyers with Sidley Austin LLP in Brussels. They can be reachedat [email protected] and [email protected]. The authors thank Jacques Bourgeois and Bregt Natens for theiruseful comments on an earlier version of this article. Any errors or omissions are the authors’ own. The viewsexpressed in this article are exclusively those of the authors. The article has been prepared for academic purposesonly and does not constitute legal advice.
1G.C. Hufbauer et al., Economic Sanctions Reconsidered, 3rd edn (Washington, DC: Peterson Institute forInternational Economics, 2007), p.3. See also A.F. Lowenfeld, International Economic Law (Oxford: Oxford UniversityPress, 2008), p.850.
2 See C. Hotton, “Targeted Sanctions: Providing a Solution to the Issue of General Sanctions” (2016) 7 CreightonInternational & Comparative Law Journal 86.
and international organisations increasingly rely on these instruments to pursueforeign policy objectives.3
Sanctions are part of the UN toolbox to secure international peace and security.The UN Security Council,4 upon determining the existence of a threat to peace,breach of peace or act of aggression, can decide whether and which sanctionsshould be adopted to remedy such unsettling situations.5 The Security Council mayimpose economic sanctions in the form of trade and financial restrictions. TheSecurity Council has so far adopted economic sanctions in pursuit of a variety ofpurposes, including support for the political settlement of conflicts, counterterrorismand the prevention of nuclear proliferation.6
Next to the implementation of UN sanctions, states impose their own sanctions.The EU seems particularly inclined to impose sanctions for foreign policy purposes.Sanctions fall within the Common Foreign and Security Policy (CFSP) of the EUand appear consistent with the EU’s willingness to “assert its interests and valueson the international scene”.7 EU sanctions are of two kinds. On the one hand, asmentioned, the EU implements UN sanctions, thereby complying with SecurityCouncil’s resolutions.8 With this, the EU may choose to apply sanctions that aremore restrictive than those at UN level.9 On the other hand, the EU also imposesautonomous sanctions, independently of any Security Council’s resolution.10 TheCouncil is the institution to decide on the imposition of sanctions11 and adopt thenecessary measures to implement sanctions of an economic nature.12
Sanctions are generally addressed to states. Yet, in more recent times both theSecurity Council and the EU have increasingly resorted to so-called targetedsanctions. These address specifically identified individuals and respond to thecritique that sanctions against states risk harming a population without successfullyaffecting those actually involved in the sanctioned aggression or oppression.13 Byconstraining individuals’ access to economic resources and broadly impeding theirbusiness activities, targeted sanctions aim at coercing a change in behaviour bytargeted individuals and at making them lose power in their respective states.14 Tobetter their effectiveness, targeted sanctions tend to be imposed against entitiesand associations of individuals too.
3This article addresses sanctions strictly speaking, to be distinguished from countermeasures and retorsions. Fora brief discussion, see section “Identifying alternative strategies to litigate sanctions” below.
4The Security Council is the executive organ of the UN, composed of five permanent members (i.e. China, France,the Russian Federation, the United Kingdom, the United States) and 10 non-permanent members elected for two-yearterms.
5 See Ch.VII of the Charter of the United Nations 1945, 1 U.N.T.S. XVI (UN Charter). See esp. UN Charter arts39, 41.
6 Since 1966, the Security Council has established 30 sanctions regimes, 14 of which are currently in place.7Treaty on European Union [2016] OJ C202/17 (consolidated) (TEU) art.32.8 Pursuant to art.48 UN Charter, the Security Council’s resolutions are binding upon states, which are requested
to take action directly and within international organisations of which they are members (i.e. the EU).9Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU
Common Foreign and Security Policy, Doc. 5664/18 of 4 May 2018, para.3.10Basic Principles on the Use of Restrictive Measures (Sanctions), Doc. 10198/1/04 of 7 June 2004, para.3.11TEU arts 29 and following.12Treaty on the Functioning of the European Union [2016] OJ C202/1 (consolidated) (TFEU) art.215.13 J. Klabbers, International Law (Cambridge: Cambridge University Press, 2013), p.179.14 See T. Biersteker et al., The Effectiveness of United Nations Targeted Sanctions (Geneva: Graduate Institute of
International and Development Studies, 2013), p.12.
Individuals and entities subject to targeted sanctions are included in so-called“sanctions lists”. These lists can be established by the UN or the EU15 and followhighly politicised procedures lacking sufficient transparency. Especially, the criteriaon which sanctions lists are based risk either not being provided or being toobroadly and ambiguously phrased. That is why it is crucial to identify themechanisms available to persons affected by sanctions to challenge their listingand the legality of sanctions. This article aims at detecting and investigating suchmechanisms, pointing to potential successful litigation strategies. To this end, itwill focus on the experiencematured before the EUGeneral Court (at first instance),and the EU Court of Justice (on appeal), together referred to as EU courts,16 as akey case study. This article starts by analysing existing case law before the EUcourts, assessing the current state of affairs and the limits that litigating sanctionsin the EU is encountering. Given the difficulties in successfully challengingsanctions before the courts of the EU, this work then looks at alternative ways fora more effective strategy to litigate sanctions, including possible new claims andnew fora where to challenge sanctions acts. The last section provides the conclusion.The focus will be primarily on targeted sanctions of an economic nature.
Litigating sanctions in the European UnionStates implement sanctions adopted by the UN and they also impose autonomoussanctions to pursue national foreign policy objectives. In both instances, statesadopt national acts that can be challenged before national courts.17 With respectto the EU, as mentioned, sanctions fall under the CFSP framework and are adoptedand implemented primarily by the EU institutions. EU sanctions acts, as legislativeacts of the EU, are subject to judicial review by the EU courts.18As the subsectionsbelow will show, however, the EU courts enjoy limited jurisdiction over sanctionsacts. Also, the EU courts have so far adopted a highly restrictive approach whenasked to assess the legality of sanctions. This undermines the possibility ofsuccessfully challenging sanctions in the EU forum.
The EU courts’ limited jurisdiction on sanctionsThe first obstacles that individuals and entities willing to challenge sanctions inthe EU encounter are the limits that curtail the possibility to act before the EUcourts, and the type of judicial review that the EU courts may conduct oversanctions acts.
15The EU establishes sanctions lists exclusively in respect of its autonomous sanctions or where Security Council’sresolutions expressly refer the listing to UN members.
16 See TEU art.19.17 Individuals and entities may also challenge the legality of sanctions before the European Court of Human Rights
(ECtHR), claiming breaches of certain rights and freedoms provided for in the European Convention on HumanRights 1950, 87 U.N.T.S. 103 (ECHR). The ECtHR had the opportunity to resolve upon few cases relating to sanctions,mainly finding breaches of procedural rights such as the right to a fair trial (art.6) and the right to an effective remedy(art.13): see ECtHR, Nada v Switzerland, Appl. No.10593/08, Judgment of 12 September 2012; ECtHR, Al-Dulimiand Montana Management Inc v Switzerland, Appl. No.5809/08, Judgment of 21 June 2016.
18TFEU art.295(2) provides for an exception to the otherwise limited jurisdiction of the EU courts on CFSPmeasures.
Defeating Economic Sanctions in the EU: A Strategic Analysis of LitigationOptions 41
Acting before the EU courtsThe EU courts are competent to review the legality of EU legislative acts and ordercompensation for damages and interim measures; the Court of Justice can alsoissue preliminary rulings following questions raised by Member States’ courts onthe legality or interpretation of EU law.19 The possibility for natural and legalpersons affected by sanctions to have recourse to the named judicial actions isnonetheless subject to cogent conditions.For instance, the action of annulment under art.263(4) TFEU would allow
individuals and entities affected by EU sanctions to claim the illegality of sanctionsand obtain their annulment. However, it is conditional on strict standingrequirements. Individuals and entities may initiate a proceeding before the EUcourts exclusively regarding acts that (1) are addressed to them; (2) are of directand individual concern to them; or (3) are of a regulatory nature and of directconcern to them and do not entail implementingmeasures.20 Individuals and entitiesshould also show interest in bringing action at the stage of lodging it andcontinuously until the final judgment; namely, the action (if successful) must beliable to procure them an advantage.21 On the one hand, it is settled case law thatindividuals and entities on EU sanctions lists have standing to initiate an actionfor annulment against the EU listing decisions. It is also uncontroversial that theymaintain their interest in pursuing the annulment action even if they are de-listedbefore the conclusion of the proceeding, in light of the substantive negativeconsequences (at least of a reputational nature) potentially suffered because of thedisputed sanctions.22 On the other hand, applicants regularly fail to satisfy thestanding requirements.Also the preliminary ruling procedure under art.267 TFEU (to which persons
lacking standing under art.263(4) TFEU could resort to) may be of limited help.The preliminary ruling procedure allows national courts to pose questions on theinterpretation and legality of EU sanctions acts to the Court of Justice. Throughthe preliminary ruling procedure, private parties lacking standing under art.263(4)TFEU can obtain a Court of Justice’s decision clarifying the exact meaning andscope of EU sanctions23 and even the invalidation of illegal sanctions,24 it beingunderstood that only the EU courts have power to invalidate EU legislative acts(including sanctions acts). However, national courts have a margin of discretionin deciding whether to initiate a preliminary ruling procedure,25 which underminesa claimant’s chances to obtain the invalidation of challenged EU sanctions acts.
19TFEU arts 251 and following.20TFEU art.263(4).21 See, e.g.,Wunenburger v Commission (C-362/05) EU:C:2007:322; [2019] C.M.L.R.10 at [42].22 See Abdulrahim v Council and Commission (C-239/12) EU:C:2013:331; [2013] 3 C.M.L.R 41 at [61] and
following; National Iranian Tanker Co v Council (C-600/16) EU:C:2018:966; [2019] 4 W.L.R. 58 at [32]–[35].23 SeeM et al. (C-340/08) EU:C:2010:232; [2010] 3 C.M.L.R. 31; Afrasiabi et al. (C-72/11) EU:C:2011:874;
Rosneft (C-72/15) EU:C:2017:236; SH (C-168/17) EU:C:2019:36; [2017] 3 C.M.L.R. 23.24 See E and F (C-550/09) EU:C:2010:382; [2011] All E.R. (EC) 127.25 See S. Weatherill, Cases and Materials on EU Law (Oxford: Oxford University Press, 2014), pp.173 and
following. Courts of last instance would lack such discretion, even though they may not refer questions on EU lawmatters to the EU courts on the basis of the acte clair doctrine: see E and F (C-550/09) EU:C:2010:382; [2011] AllE.R. (EC) 127.
Defining the jurisdiction of the EU courtsAs noted, the EU courts are competent to decide on the legality of EU legislativeacts. Relevant EU legislative acts include decisions and regulations with whichthe EU institutions impose and implement restrictive measures against individualsand entities (i.e. targeted sanctions).26 The EU courts are given full judicial reviewof EU autonomous sanctions. By contrast, the EU courts’ jurisdiction over EUsanctions acts implementing Security Council’s resolutions is controversial, andgenerally results in a curtailed assessment of the legality of sanctions.Traditionally, the EU courts were reluctant to scrutinise EU sanctions acts
implementing Security Council’s resolutions. Up to 2008, the EU courts wouldacknowledge the primacy of UN legal sources in the international law framework.27
They determined the legality of EU acts under not only the EU legal order, butalso given rules of international law (encompassing UN law).28 The EU courtswould thus not resolve upon the legality of UN-derived sanctions: such scrutinywould amount to an indirect review of Security Council’s acts, which lay outsidetheir jurisdiction.29
Following theKadi case in 2008,30 the EU courts have appeared willing to reviewEU sanctions acts implementing Security Council’s resolutions—yet, only inexceptional circumstances. It is true that the Court of Justice has shifted to adualistic approach,31 emphasising the autonomy of the EU legal order and thenecessity to assess EU legislative acts under the principles governing the EU legalorder specifically.32 It stressed how the legality of EU legislative acts is a matterof EU law and that such legality is conditional on compliance with the constitutionalprinciples of the EU33; all the more since the UN sanctions system lacks sufficientjudicial guarantees.34 However, the judicial review advocated by the Court ofJustice is in essence limited to cases where UN sanctions or EU acts implementing
26TFEU art.275.27 See UN Charter art.103; Vienna Convention on the Law of Treaties 1980, 1155 U.N.T.S. 331 (VCLT) art.27;
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Jurisdiction andAdmissibility, 26 November 1984, ICJ Reports (1984), p.392 at [107].
28 See International Fruit Co. v Produktschapp voor Groenten en Fruit (C-21/72 to C-24/72) EU:C:1972:115 at[6]; (C-162/96) Racke v Hauptzollamt Main EU:C:1998:293; [1998] 3 C.M.L.R. 219 at [2]–[27].
29 See Kadi v Council and Commission (T-315/01) EU:T:2010:418; [2011] 1 C.M.L.R 24 at [176] and following;Yusuf v Council and Commission (T-306/01) EU:T:2005:331, [2005] 3 C.M.L.R. 49 at [226] and following; Hassanv Council and Commission (T-49/04) EU:T:2006:201 at [91] and following.
30 See Kadi (C-402/05) EU:C:2008:461; [2008] 3 C.M.L.R. 41.31 Some have criticised this approach. They see this as undermining the unity and harmony of the international
legal order and suggest that the EU courts should rely on systemic interpretation as other regional courts do. See S.Guggisberg, “The Nada Case Before the ECtHR: A New Milestone in the European Debate on Security CouncilTargeted Sanctions and Human Rights Obligations” (2012) 8 Croatian Yearbook of European Law and Policy 411;I.L. Vlad, “Targeted Sanctions, Judicial Antagonism or Legal Dialogue” (2015) Revista de Drept Public 114. Seeesp. ECtHR, Al Jedda v United Kingdom, Appl. No.27021/08, Judgment of 7 July 2011; ECtHR,Nada v Switzerland,Appl. No.10593/08, Judgment of 12 September 2012.
32 See Kadi v Council and Commission (C-402/05) EU:C:2008:461; [2008] 3 C.M.L.R. 41; Kadi v Commission(T-85/09) EU:T:2010:418; [2011] 1 C.M.L.R. 24;Commission v Kadi (C-584/10) EU:C:2013:518, [2014] 1 C.M.L.R.24. For a comment, see C.H.R. Eckes, “Trapped between Courts or how Terrorist Suspects Lost their Right to aRemedy” in A. Follesdal et al. (eds),Multilevel Regulation and the EU (Leiden/Boston: Martinus Nijhoff Publishers,2008), pp.261–299.
33Kadi v Council and Commission (C-402/05) EU:C:2008:461; [2008] 3 C.M.L.R. 41 esp. at [281], [284]. Onlegality being a matter of EU law, see alsoHaegeman v Belgian State (C-181/73) EU:C:1974:41;Bosphorus vMinisterfor Transport, Energy and Communications (C-84/95) EU:C:1996:312; [1996] 3 C.M.L.R. 257.
34Kadi v Council and Commission (C-402/05) EU:C:2008:461; [2008] 3 C.M.L.R. 41, esp. at [256]. On the EUcourts’ emphasis on the relevance of fundamental rights in the context of sanctions, see M. Payabde and H. Sauer,“European Union: UN Sanctions and EU Fundamental Rights” (2009) 7(2) International Journal of ConsitutionalLaw 306.
Defeating Economic Sanctions in the EU: A Strategic Analysis of LitigationOptions 43
the same breach well-established fundamental rights, part of EU primary law. Thisis on the understanding that international law obligations (includingUN obligations)cannot prejudice or allow any derogation from fundamental rights such as a person’srights to be heard and to obtain an effective judicial remedy.35
In sum, the EU courts seem willing to affirm their competence to review notonly EU autonomous sanctions but also EU sanction acts implementing SecurityCouncil’s resolutions, in instances of material breach of fundamental rights only.Also, as the subsections below will suggest, the judicial review exercised by theEU courts on EU sanctions acts implementing Security Council’s resolutions (aswell as EU autonomous sanctions) is limited to verify compliance with proceduralrights, while the EU courts do not judge the merits of decisions to impose sanctions.
The EU courts’ restrictive approach on the illegality of sanctionsBesides the constraints for a full judicial review of CFSP measures, the possibilityfor persons affected by sanctions to challenge relevant sanctions acts is affectedby the restrictive approach adopted by the EU courts when both considering claimson the illegality of sanctions, and ruling on requests for damages and interimmeasures.
Actions for annulmentThe EU courts display significant deference to the actions of the EU institutionsin the CFSP field, while strictly assessing claims on the illegality of sanctions acts(and listing decisions specifically). The restrictive approach adopted by the EUcourts is evident in the case law concerning some of the most recurrent illegalitypleas, including the following arguments:
1. The EU institutions fail to state reasons and breach their right ofdefence by failing to support factual and legal allegations withadequate evidence;
2. The EU institutions make manifest errors of assessment indetermining whether listing criteria are satisfied;
3. The EU institutions disproportionately restrict fundamental rights,including rights to property and reputation and the freedom to conducta business; and
4. The EU institutions breach their right to an effective remedy.
The EU courts tend to welcome the (recurring) argument on the inadequacy andinsufficiency of the evidence supporting listing decisions; yet decisions have notalways been consistent. This argument underlies both claims that the lack of clearallegations for listing prevents listed individuals and entities from properlyexercising their right of defence (point 1 above), and claims that the EU institutionsmake manifest errors in assessing whether the listing criteria are satisfied (point2 above). According to the EU courts, evidence needs to be precise, concrete and
35Kadi v Council and Commission (C-402/05) EU:C:2008:461; [2008] 3 C.M.L.R. 41 esp. at [282]–[283], [303].
individualised36; confidentiality is no excuse for lack of evidence.37 In numerouscases, listed individuals and entities have successfully challenged the lack ofsufficient, adequate evidence.38 However, the EU courts have not consistentlycarried out the mentioned rigorous review; sometimes they have accepted listingsbased on assumptions and common experience in light of specific factualcircumstances.39
The EU courts usually reject claims on unjustified, disproportionate restrictionsto the rights to property and reputation along with freedom to conduct a business(point 3 above). The EU courts consider that the mentioned rights and freedoms,far from being unfettered prerogatives,40 can indeed be restricted for reasons ofpublic interest, provided they are not disproportionately or intolerably interferedwith. In the context of CFSP measures, the EU courts are particularly keen onfinding that the legitimate objectives pursued by sanctions are of paramountimportance and thus justify restrictive measures on listed individuals and entities.41
Lastly, the EU courts approach restrictively claims on breach of the right to aneffective remedy on the part of listed individuals and entities (point 4 above). Thisclaim is especially relied upon in connection with re-listings; when the EUinstitutions reinstate an individual or entity on sanctions lists after the annulmentof their original listing for failure to provide sufficient evidence. With re-listings,the claim of breach of the right to an effective remedy is usually put forth togetherwith alleged breaches of the principles of res judicata and protection of legitimateexpectations. This is particularly true if re-listings are based on the same factualallegations and on evidence predating and accessible at the time of the originallisting. However, the EU courts tend to reject such arguments, stressing thefollowing42:
1. The right to an effective remedy exclusively aims to ensure that anact adversely affecting an individual or entity can be challengedbefore judicial authorities. It does not prevent adoption of newrestrictive measures following a re-examination of facts;
2. The principle of res judicata extends to matters of fact and lawactually or necessarily settled by judicial decisions. It does notprevent re-listings based on information and listing criteria notconsidered at the time of the annulment of the original listing. Hence,it is irrelevant that the evidence the EU institutions relied on to re-listexisted and was publicly available at the time of the original listing;and
36 Tay Za v Council (C-376/10) EU:C:2012:138; [2012] 2 C.M.L.R. 27 at [70].37Particular rules of procedure apply in case of confidential information, so as to enable a full judicial review: see
Rules of Procedure of the General Court [2015] OJ L105/1 (as amended).38 See Bank Mellat v Council (T-496/10) EU:T:2013:39; National Iranian Tanker Co v Council (T-565/12)
EU:T:2014:608; Abdulrahim v Council and Commission (T-127/09) EU:T:2015:4.39 See Gossio v Council (T-130/11) EU:T:2013:217 at [45]–[52];Makhlouf v Council (T-509/11) EU:T:2015:33
at [59]; Anbouba v Council (C-605/13) EU:C:2015:248 at [18]–[21].40 SeeMabrouk v Council (T-216/17) EU:T:2018:779 at [115] and following;Mubarak v Council (T-358/17)
EU:T:2018:905 at [166] and following.41 See National Iranian Tanker Co v Council (C-600/16) EU:C:2018:966 at [82] and following.42SeeAl-Faqih et al. v Commission (C-19/16) EU:C:2017:466;BelTechExport v Council (T-765/15) EU:T:2017:669;
Kaddour v Council (T-461/16) EU:T:2018:316; National Iranian Tanker Co v Council; (C-600/16) EU:C:2018:966;Bank Tejarat v Council (C-248/17) EU:C:2018:967.
Defeating Economic Sanctions in the EU: A Strategic Analysis of LitigationOptions 45
3. The principle of legitimate expectations is similarly inapplicable tothe majority of re-listing cases. It is limited to cases where anindividual or entity receives precise assurances from the acting EUinstitution.
Re-listings could clash with re-listed individuals’ and entities’ right to an effectiveremedy in respect of former judgments annulling their original listings, especiallyif the underlying factual circumstances are unchanged.43 Specifically, the EUinstitutions should not be given a “second chance” to re-examine legal issuesdecided by the EU courts in earlier judgments.44 This notwithstanding, the EUcourts seem to accept re-listings based on new listing criteria and evidence notaddressed during the original listings, even if the underlying facts are substantiallythe same. Therefore, even where listed individuals and entities succeed in defeatingtheir original listing on grounds of insufficient, inadequate evidence, they aresusceptible to subsequent re-listing.45 The restrictive approach adopted by theEuropean judiciary is even more problematic given the absence, in the EU, of anymechanism to request de-listing other than through judicial action—differentlyfrom jurisdictions like the United States where affected persons may address acompetent administrative authority and agree on remedial actions to be de-listed.46
Damages and interim measuresThe deference of the European judiciary to the EU institutions’ CFSP action isalso evident in the regular rejection of requests for damages and interimmeasures.47
The EU courts could order compensation if sanctioned individuals and entitiessuffer(ed) actual damage causally linked to an unlawful conduct by the EUinstitutions.48 To date, the EU courts have found three instances of a “sufficientlyserious breach of a rule of law” that justified compensation for non-material damagesuffered by a listed entity.49 Specifically, the EU institutions were found not tohave acted as an administrative authority, exercising ordinary care and diligencein similar circumstances; indeed, they listed the target entity on a Member State’sproposal and kept that entity listed for over three years without ever verifying theaccuracy of the factual allegations grounding the listing request.50 Barring suchexceptional circumstances, the EU courts tend to dismiss claims for damages,primarily for lack of evidence showing actual damage.51
43 See Opinion of A.G. Tanchev in National Iranian Tanker Co v Council (C-600/16) EU:C:2018:227.44Opinion of A.G. Tanchev in National Iranian Tanker Co v Council (C-600/16) EU:C:2018:227 at [119].45The limited relief sanctioned private parties may receive could be even more seriously affected where the EU
courts took advantage of their discretionary power under art.264(2) TFEU, according to which they may derogatefrom the ex tunc effect of annulment. So far, the EU courts have not relied on art.264(2) TFEU in the context ofsanctions; case law in other fields include, e.g., Commission v. Council (C-389/15) EU:C:2017:798 at [78]–[84] (onexternal relations).
46 See US Department of the Treasury, Filing a Petition for Removal from an OFAC List, https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/petitions.aspx. For an example of “negotiated” remedies leading tode-listing, see US Department of the Treasury, OFAC Delists En+, Rusal, and EuroSibEnergo (2019), https://home.treasury.gov/news/press-releases/sm592 [Both accessed 6 November 2019].
47 See L. Di Masi et al., “An Overview of EU Sanctions Case Law” (2015) 10(7/8) Global Trade and CustomsJournal 250.
48 See art.268 TFEU in conjunction with art.340(2) TFEU.49 See, e.g.Safa Nicu Sepahan v Council (T-384/11) EU:T:2014:986 at [50], [69], as upheld in Safa Nicu Sepahan
v Council (C-45/15) EU:C:2017:402. See also Fulmen v Council (T-405/15) EU:T:2019:469;Mahmoudian v Council(T-406/15) EU:T:2019:468.
50 Safa Nicu Sepahan v Council (T-384/11) EU:T:2014:986 esp. at [54], [68].51 See Hassan v Council (T-572/11) EU:T:2014:682 at [102] and following.
The EU courts are reluctant to order interim measures too. Interim measuresrequire the fulfilment of two cumulative requirements.52 First, there must be factualand legal grounds establishing a prima facie justification for granting the measures.Second, there must be urgency to avoid serious and irreparable damage. The EUcourts systematically reject requests for interimmeasures based on lack of urgency.The EU courts find that evidence cannot support the existence of serious andirreparable damage:53 in particular, pecuniary damages deriving from imposedsanctions can always be compensated,54 except if causing the exit of a businessfrom the market (which is found to hardly ever occur).55
Identifying alternative strategies to litigate sanctionsThe section above shows that claiming the illegality of EU sanctions acts beforethe EU courts is rarely, if ever, effective, both for the EU courts’ reluctance toannul acts adopted by the EU institutions and for the small chance to recoverdamages. Therefore, listed individuals and entities may avail themselves ofalternative strategies to challenge their listing and the legality of sanctions. Theycould strengthen their claims before the EU courts by suggesting that sanctionshave a criminal nature and that the rights affected qualify as peremptory norms ofjus cogens. They could especially take advantage of alternative fora, such asnational courts, the de-listing mechanisms existing within the UN and, to a certainextent, the International Court of Justice (ICJ).
Claiming the criminal nature of sanctions and violations of juscogensA first option would be for listed individuals and entities to strengthen their claimsbefore the EU courts by arguing that sanctions are of a criminal nature.Alternatively, they could argue that sanctions violate certain rights of a peremptorynature. While such qualifications would offer stronger judicial guarantees, it istrue that these claims may have little chance of resulting in more effective litigationsince the EU courts prefer to deny the criminal or peremptory nature of,respectively, sanctions and affected rights.First, listed individuals and entities could submit that sanctions (e.g. asset
freezing and business restrictions) have a punitive aim and effect and thus a criminalnature. Sanctions are eventually often connectedwith domestic proceedings relatingto offences with a clear criminal classification.56 The recognition of sanctions’criminal nature would trigger additional judicial guarantees provided for in criminalproceedings, including the presumption of innocence and the right to legalassistance.57 The intertwined principles of res judicata and ne bis in idem (i.e. nottwice for the same offence) would cogently apply, preventing any re-examination
52 See TFEU arts 278–279.53 See António Conde & Companhia v Commission (T-443/17) EU:T:2017:671 at [31].54 See Safa Nicu Sepahan v Council (T-384/11) EU:T:2011:545) at [21]; Klyuyev v Council (T-305/18)
EU:T:2018:849) at [76].55Qualitest v Council (T-421/11) EU:T:2011:557 at [20] and following.56 See, e.g.,Mabrouk v Council (T-175/15) EU:T:2017:694.57 See art.6(2)–(3) ECHR; arts 47–48 of the Charter of Fundamental Rights of the European Union [2012] OJ
C326/391 (EU Charter).
Defeating Economic Sanctions in the EU: A Strategic Analysis of LitigationOptions 47
of the same factual circumstances regardless of their legal classification.58
Furthermore, evidence should support allegations according to the high thresholdof “beyond any reasonable doubt”.However, one cannot avoid noticing that the EU legal order lacks a criminal
side,59 and especially that the EU courts have already expressed their reluctanceto accept the above arguments. The criminal nature of sanctions would need tostem not only from their effects, but also (and primarily) from their subjective goalto penalise the conduct of the targeted person.60 Sanctions adopted within the CFSPframework are instead seen as of a purely precautionary nature, being aimed atencouraging a change in conduct by the sanctioned individual or entity.61 It is worthnoting how, by contrast, other international courts adopt a more flexible approachto the criminal classification of sanctions.62
Second, listed individuals and entities could argue that sanctions entail violationsof certain rights that qualify as peremptory norms of jus cogens. Peremptory normscan never be opted out of, objected to or derogated from,63 so that conflictingmeasures are inherently illegal. Most of the rights that are affected by sanctions(including the right of defence, the right to property and the right to an effectiveremedy, discussed above) are contemplated in some of the principal conventionsand charters, considered as having universal value.64 This notwithstanding, it isdebatable which norms are jus cogens. In the well-known case of Yusuf, forinstance, the European judiciary stressed that neither the right to property, nor theright to be heard, nor even the right to access to courts could be read as cogent,absolute prerogatives in situations of public emergency like those addressed insanctions regimes.65 Hence, the EU courts for now appear keen on denying thatrights affected by sanctions may qualify as jus cogens.
Litigating sanctions before national courtsNational courts of EU Member States are increasingly an interesting avenue tolitigate sanctions.66 Besides remedying the EU courts’ resistance to question thelegality of EU sanctions acts, national courts may offer additional advantages.National courts have greater familiarity with non-contractual liability and tend togrant interim measures and compensation for material and non-material damages
58 See, e.g., Kraaijenbrink (C-367/05) EU:C:2007:444; [2007] 3 C.M.L.R. 44.59The EU lacks a (general) competence in criminal matters, but retains a more limited role in judicial co-operation
in criminal matters (see TFEU art.82 and following). This may also explain the EU courts’ reluctance to accept acriminal qualification of sanctions.
60 SeeMabrouk v Council (T-216/17) EU:T:2018:779 at [62]. See also Lux v Court of Auditors (C-69/83)EU:C:1984:225 at [31].
61 See Sison v Council (T-47/03) EU:T:2007:207; [2007] 3 C.M.L.R. 39 at [101]; Fahas v Council (T-49/07)EU:T:2010:499 at [67]; Peftiev v Council (T-441/11) EU:T:2014:1041 at [87]–[89];Mabrouk v Council (T-216/17)EU:T:2018:779 at [57] and following.
62 See, e.g., ECtHR, Case of Grande Stevens v Italy, Appl. No.18640/10, Judgment of 4 March 2014.63Brierly’s Law of Nations: 7th edn, edited by A. Clapham (Oxford: Oxford University Press, 2012), p.6.64With particular regard to the rights to defence, property and effective remedy, see arts 6 and 13 of Protocol 1 to
the ECHR; EU Charter arts 17, 47–48; Universal Declaration of Human Rights, GA Res. 217A (III, (10 December1948) arts 8, 10–11, 17; International Covenant on Civil and Political Rights, GA Res. 2200 (XXI) (16 December1966) arts 2, 14.
65See esp. Yusuf v Council and Commission (T-306/01) EU:T:2005:331 at [293]–[303], [308]–[316], [340]–[341].66 See M. Lester and B. Kennelly, “Judicial Review of Sanctions Decisions: The Wrong Point in the Wrong Court
with the Wrong Defendant?” (2013) 18(2) Judicial Review 206.
more easily. National courts may also offer “creative” remedies other than themere annulment of the contested acts and compensation of damages.67
National courts are bound to the so-called Foto-Frost principle,68 according towhich exclusively the EU courts retain power to declare an EU act illegal. Nationalcourts can rule upon the legality of Member States’ acts, including acts aimed atmaking EU sanctions operative domestically, but not on EU sanctions acts per se.National courts’ jurisdiction would be also barred when the claimant’s submissionrefers to domestic acts but substantially attacks EU acts.69
However, the Foto-Frost principle does not stretch indefinitely. National courtsappear willing to find jurisdiction overMember States’ refusals to request de-listing,as well as on listing proposals attributable to specific Member States.70 Refusalsto request de-listing are pure national acts that conflict with Member States’ dutyto assist individuals or entities in obtaining de-listing.71 Listing proposals couldalso qualify as decisions attributable to domestic authorities. This is true whenlisting proposals relate to UN sanctions lists, as, within the Security Council,Member States of the EU act in their own capacity. By contrast, such a qualificationappears more controversial in respect of EU sanctions lists. As already noted, atthe EU level, listing decisions are taken by the Council, a collegiate body composedof Member States’ officials who act in unity and whose positions should not beseverable.72
Therefore, listed individuals and entities could act before national courtschallenging Member States’ listing proposals (especially in connection with UNsanctions lists) or their refusals to request de-listing (regarding both UN sanctionsand EU autonomous sanctions). These procedures would also enable recovery ofdamages.
Relying on the de-listing mechanisms of the United NationsA third avenue to challenge sanctions (primarily, Security Council’s listingdecisions) could be the recourse mechanisms internal to the UN. Sanctions fallamong the prerogatives of the Security Council under Ch.VII of the UN Charterand are operatively managed by sanctions committees appointed by the SecurityCouncil. Individuals and entities on UN sanctions lists may resort to two“independent” bodies to request de-listing: the Focal Point and the Office of theOmbudsperson. Although it needs to be acknowledged that these de-listing
67cf. L. Pantaleo, “Sanctions Cases in the European Courts” in M. Happold and P. Eden (eds), Economic Sanctionsand International Law (Oxford: Hart Publishing, 2016), pp.171 and following.
68Foto-Frost v Hauptzollamt Lübeck-Ost (314/85) EU:C:1987:452; [1988] 3 C.M.L.R. 57. See also Gaston SchulDouane-expediteur (C-461/03) EU:C:2005:742.
69 See R. (Melli Bank Plc) v Her Majesty’s Treasury, Foreign and Commonwealth Office [2008] EWHC 1661(Admin.); R. (El-Maghraby and El-Gazaerly) v Her Majesty’s Treasury, Foreign and Commonwealth Office [2012]EWHC 674 (Admin.)
70See Tribunal de Première Instance de Bruxelles (quatrième section), Nabil Sayadi and Patricia Vink v Belgium,Order of 11 February 2005 (unreported), as confirmed in UN Human Rights Committee, Comm. no. 1472/2006,Decision of 22 October 2008, esp. at [12]; Her Majesty’s Treasury v Mohammed Jabar Ahmer [2010] UKSC 2; R.(Bredenkamp) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 3297 (Admin.); R .(Aziziand Sedghi) v Secretary of State for Foreign and Commonwealth Affairs and R.(Meskarian and Zavvar) v Secretaryof State for Foreign and Commonwealth Affairs (settled in 2012).
71SeeAyadi v Council (T-253/02) EU:T:2006:200; UNHumanRights Committee, Comm. no.1472/2006, Decisionof 22 October 2008.
72L. Pantaleo, “Sanctions Cases in the European Courts” in M. Happold and P. Eden (eds), Economic Sanctionsand International Law (Oxford: Hart Publishing, 2016), p.191.
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procedures are highly politicised (the above-mentioned sanctions committeeseventually retaining full decision-making power on de-listing), they representinteresting alternatives to contentious litigation.Individuals and entities73 on any UN sanctions list (other than the ISIL (Da’esh)
& Al-Qaida Sanctions List) may request de-listing to the Focal Point. The FocalPoint was established in 2006 in an attempt to ensure a fair and clear procedurefor removing individuals and entities from UN sanctions lists74; yet it has beenproving of limited efficacy, conducting administrative tasks for the most part. TheFocal Point fosters consultations among reviewing governments (i.e. the state ofresidence and that of citizenship and the state that first requested listing), ormembers of the sanctions committee in case of inactivity of the former. Upon anysuch government or member recommending de-listing, it is up to the competentsanctions committee to decide on de-listing, while the Focal Point informs therequesting individual or entity of the outcome of the de-listing procedure. TheFocal Point is also competent to receive travel ban and assets freeze exemptionrequests from individuals and entities on the ISIL (Da’esh) & Al-Qaida SanctionList75 and on the 1988 Sanctions List designating individuals and entities associatedwith the Taliban.76 Also in this context, the primary role of the Focal Point is totransmit requests to the competent sanctions committee and convey responses topetitioning individuals and entities.To request de-listing, individuals and entities on the ISIL (Da’esh) & Al-Qaida
Sanctions List may instead address the Office of the Ombudsperson, an independentbody established in 2009.77 Although it enjoys a more prominent role than theFocal Point, also the Ombudsperson lacks actual decision-making power. It gathersinformation relevant to assess whether the listing criterion of being associated withISIL or Al-Qaida78 is fulfilled in relation to any received de-listing request. Basedon the information so retrieved, it submits a recommendation on de-listing to thecompetent sanctions committee. The Ombudsperson recommends de-listingdepending on whether there is sufficient information to provide a reasonable andcredible basis for listing.79 Such a standard is applied having regard to theinternational framework and to the preventive but significant nature of sanctions.Consistently, the Ombudsperson does not rely on national precepts and requires
73 Individuals and entities can submit their de-listing requests either directly to the Focal Point or through theirstate of residence or citizenship. A state can decide, by means of a declaration that, as a rule, its citizens or residentsshould address their de-listing requests directly to the Focal Point: see fn.1 to SC Res. 1730, 19 December 2006.
74 See Preamble to SC Res. 1730, 19 December 2006; see also GA Res. 60/1, 24 October 2005, para.109. Thede-listing procedure involving the Focal Point is laid out in the Annex to SC Res. 1730, 19 December 2006.
75 See SC Res. 2253, 17 December 2015, at para.76, as then confirmed in SC Res. 2368, 20 July 2017, at para.82.The Focal Point is also competent to receive communications from individuals de-listed from the ISIL (Da’esh) &Al-Qaida Sanction List and from individuals claiming to have been subject to such sanctions mistakenly: see SC Res.2253, 17 December 2015, at para.77, as then confirmed in SC Res. 2368, 20 July 2017, at para.83.
76 See SC Res. 2255, 22 December 2015, at paras 17, 22.77 See SC Res. 1904, 17 December 2009, at paras 20 and following. The procedure to be followed by the
Ombudsperson was set out in Annex II of such Resolution and is currently described in Annex II to SC Res. 2368,20 July 2017.
78 Sanctions are applied to ISIL, Al-Qaida and associated individuals and entities. SC Res. 2368, 20 July 2017, atpara.2, currently sets when such “association” is deemed existent.
79Office of the Ombudsperson,Historical Guide of the Ombudsperson Process through Security Council Resolutionsand Reports of the Office of the Ombudsperson to the Security Council (2018), p.69, https://www.un.org/securitycouncil/sites/www.un.org.securitycouncil/files/historical_guide_ombudsperson_process_march_2018.pdf [Accessed 6November 2019].
substance and reliability to the information underlying listing.80 Based on such arecommendation, the competent sanctions committee resolves upon the de-listingrequest.These procedures are not free from criticism. Many have stressed how both the
Focal Point and the Ombudsperson lack any decision-making power, the ultimatedetermination on de-listing resting with the various sanctions committees.81 Thefact that information in assessing a de-listing request might be confidential orclassified further adds to the risk of non-transparent, non-well-informeddecision-making.82 The highly politicised decision-making, together with theabsence of independent bodies actually competent to review sanctions, havetriggered proposals for reforming the UN de-listing mechanisms and, inter alia,granting the Focal Point and the Ombudsperson powers to conduct a full reviewof listing decisions and adopt final decisions.83 Awaiting any such reform for moreeffective listing reviews within the UN, depending on factual circumstances listedindividuals and entities may still consider resorting to the existing de-listingmechanisms to complement contentious actions before EU and national courts.These mechanisms allow affected persons to interact directly with UN bodiesresponsible for listing and possibly obtain a revision of listing decisions, endingsanctions, by those same UN bodies.84 Where reached, the political consensusunderlying de-listing decisions also minimises the risk for de-listed individualsand entities to be reinstated in UN sanctions lists.
Looking at the International Court of Justice as a new wayforward?The ICJ has been rarely considered as a viable avenue to litigate sanctions, possiblyowing to its limited jurisdiction and to the controversial nature of sanctions in theinternational framework. Yet the ICJ could function as an effective forum forquestioning the legality of sanctions, not only for its authority in deciding mattersof international law, but also for the many arguments supporting the illegality of(especially, autonomous) sanctions.
Jurisdiction of the International Court of JusticeThe ICJ’s jurisdiction to decide on matters of international law istwofold—contentious and advisory. In the field of sanctions, the ICJ’s advisoryjurisdiction appears particularly appealing for obtaining an authoritative declarationof illegality of sanctions regimes.
80 See Office of the Ombudsperson, Approach and Standard, https://www.un.org/securitycouncil/ombudsperson/approach-and-standard [Accessed 6 November 2019].
81 See I.L. Vlad, “Targeted Sanctions, Judicial Antagonism or Legal Dialogue” (2015) Revista de Drept Public114; R.A. Wessel, “The Rule of Law and the Security Council: The New Procedures for the Legal Protection ofIndividuals in the Fight against Terrorism”, Paper prepared for the CONNEX & Ius Commune Workshop onAccountability and the Rule of Law at the International Level, University of Amsterdam (2008).
82Historical Guide of the Ombudsperson Process (2018), pp.77–81.83See, e.g., J. Cockayne et al., Fairly Clear Risks: Protecting UN Sanctions’ Legitimacy and Effectiveness Through
Fair and Clear Procedures (2018), esp. at pp.43 and following.84So far, 58 out of 77 concluded cases before the Ombudsperson led to de-listing; an overview of cases completed
by the Ombudsperson is available at https://www.un.org/securitycouncil/sc/ombudsperson/status-of-cases. Statisticsrelating to the Focal Point’s de-listing procedure are available at https://www.un.org/securitycouncil/sanctions/delisting/de-listing-request-stats [Both accessed 6 November 2019].
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Contentious disputes may be initiated only exceptionally when sanctions are atstake.85 In the context of such disputes, the ICJ is competent to resolve disputesbetween states on legal questions relating to international law, deciding the meritsand ordering compensation.86 However, first, only states have standing before theICJ.87 Although states could probably take action as sanctions (also of a targetednature) often affect key national interests, listed individuals and entities wouldneed to advocate for their state of citizenship or residence to exercise diplomaticprotection and bring their case before the ICJ. The fact that standing is curtailedto states also means that action cannot be taken directly against the UN, as it is aninternational organisation. Second, the ICJ’s contentious jurisdiction is furtherrestricted to matters that states parties to a dispute agree to refer to it, or in respectof which have recognised the ICJ’s compulsory jurisdiction, or matters providedin treaties and conventions.88 Therefore, it may be challenging to litigate sanctionsadopted by states that, not having recognised the ICJ’s compulsory jurisdiction,are unlikely to agree to refer to the ICJ a question on the legality of sanctions theyimposed.89
The many restrictions to the ICJ’s contentious jurisdiction entail that actionscan be brought in limited circumstances. As a result, the second limb of the ICJ’sjurisdiction may prove more effective regarding sanctions. The ICJ gives advisoryopinions on legal questions requested by the UNGeneral Assembly or the SecurityCouncil or by other UN organs and agencies provided the requested questions fallwithin the scope of their activities.90 Although advisory opinions are not binding,they remain highly authoritative. Consequently, states aiming at contending theillegality of sanctions could “sponsor” a UN General Assembly’s resolutionrequesting an ICJ advisory opinion on the validity of certain sanctionsregimes—especiallywhere adopted outside of theUN system91—under internationallaw. Alternatively, they could persuade a UN organ or agency to seek such advisoryopinion.92 This would also require persons affected by sanctions to engage inadvocacy efforts to persuade states to prompt the request for an advisory rulingby the ICJ. Certain states have already expressed political appetite to opposefar-reaching sanctions regimes.93
85The first contentious case has been recently launched by Iran against US sanctions: see fn.101.86 See ICJ Statute arts 34 and following.87 See ICJ Statute arts 34–35; UN Charter art.93.88 ICJ Statute art.36.89 For instance, the United States and Russia have not recognised the ICJ’s compulsory jurisdiction. The EU is an
international organisation and hence is not party to the ICJ Statute; certain EUMember States (e.g. France) have alsofailed to recognise the ICJ’s compulsory jurisdiction.
90 See ICJ Statute arts 65 and following; UN Charter art.96.91 See section “Legal arguments on the illegality of sanctions under international law” below.92Like the UN Economic and Social Council, which has a very broad mandate (see UN Charter arts 61 and
following) and has already requested two advisory opinions successfully: see https://www.icj-cij.org/en/organs-agencies-authorized [Accessed 6 November 2019]. The UNEconomic and Social Council decides by simple majorityof members present and voting, so that it could be feasible to obtain sufficient consensus to support a request for anICJ’s advisory opinion.
93 See, e.g., Russia, which has repeatedly criticised Western sanctions inter alia targeting companies of nationalinterest. See Russia Beyond, “Western Sanctions Against Russia Breach International Law, Says Lavrov” (December2014), https://www.rbth.com/news/2014/12/25/western_sanctions_against_russia_breach_international_law_says_lavrov_42528.html; Mälksoo, “Russia, Sanctions, and the Future of International Law” (2017), https://blog.oup.com/2017/09/russia-sanctions-international-law/ [Both accessed 6 November 2019].
Legal arguments on the illegality of sanctions underinternational lawIndividuals and entities could rely on various arguments in support of the illegalityof sanctions under international law, to trigger a contentious or advisory proceedingas described above. Relevant arguments would vary depending onwhether sanctionsare imposed with a Security Council’s resolution or autonomously by states, theillegality of the latter being more likely to be established.UN sanctions and national (or regional) implementing measures may be tricky
to challenge. Pursuant to art.103 of the UN Charter, the provisions of the UNCharter and, for sake of consistency, decisions or acts adopted under and inaccordance with the UN Charter prevail on any conflicting obligations underinternational law.94 This provision encompasses Security Council’s resolutionsimposing sanctions within the terms of Ch.VII of the UN Charter.Therefore, UN sanctions and national (or regional) implementing measures
could be arguably held illegal exclusively where found in conflict with norms ofjus cogens, which, as already noted, provide no possibility for any subject ofinternational law to opt out, object or derogate.95 In the absence of a codified list,it is debatable which norms qualify as jus cogens and are thus peremptory innature.96 Therefore, UN sanctions might violate peremptory norms in extreme casesonly.Autonomous sanctions adopted by states without any UN authorisation could
be more readily held illegal, with some stating that the “question of their illegalityis quite clear”.97 First, autonomous sanctions appear inconsistent with key objectivesand principles embedded in the UN Charter. They run contrary to the objective toestablish conditions for justice and respect of all obligations under internationallaw98 and to the principle of sovereign equality.99 Autonomous sanctions seem toconflict with other major principles of international law too, such as the prohibitionto interfere in internal matters of other states, freedom of trade and navigation,good faith, non-arbitrariness and the principle of pacta sunt servanda. Thesearguments find confirmation in numerous collective declarations that point toautonomous sanctions as illegal acts.100
Second, autonomous sanctions may, in certain circumstances, breach specificprovisions of international agreements entered into by the sanctioning state. Iranv United States is a promising precedent pending before the ICJ.101 There, the ICJ
94On the primacy of UN legal sources, see VCLT art.27;Military and Paramilitary Activities in and againstNicaragua (Nicaragua v United States), Jurisdiction and Admissibility, 26 November 1984, ICJ Reports (1984) 392,at para.107.
95Brierly’s Law of Nations (2012), p.6.96 See International Law Commission, “Drafted Articles on Responsibility of States for Internationally Wrongful
Acts” (2001) 2(2) ILC Yearbook 26, commentary to art.26, at p.85, para.5; commentary to art.40, at pp.112–113,paras 3–5. See also American Law Institute, “Customary International Law of Human Rights”, Third Restatementof the Foreign Relations Law of the United States (1987).
97T. Kaiser, “Unilateral Sanctions Violate International Treaties: Interview with Professor A. de Zayas” (2015),https://www.zeit-fragen.ch/en/numbers/2015/no-910-16-april-2015/unilateral-sanctions-violate-international-treaties.html [Accessed 6 November 2019].
98See UN Charter, Preamble and art.1. See also GA Res. 2625, 24 October 1970, on principles concerning friendlyrelations co-operation among states.
99 See UN Charter art.2.100 See, e.g., GA Res. 69/5, 29 October 2014.101Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of
Iran v. United States), Order, 3 October 2018, General List no.175.
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has already had the occasion to find a prima facie case of breach of certainobligations set out in the Iran-United States Treaty of Amity Economic Relationsand Consular Rights102 and to stress how breaches that affect humanitarian needsdo not fall within that Treaty’s security exceptions.103 This reasoning wouldprimarily apply to sanctions against entire economic sectors of a state (i.e. sectorialsanctions as opposed to targeted sanctions). Yet, depending on the kind of treatyobligations and on the scope of targeted sanctions, the foregoing may also concerntargeted sanctions: these often damage key exponents of a state’s essentialindustries, thereby impacting on national interests similarly to sectorial sanctionsregimes. Hence, autonomous sanctions also of a targeted nature may breach abroad range of sources, going beyond general principles of international law andthe superior UN Charter, but including bilateral and plurilateral obligations.Third, autonomous sanctions appear incapable of any legal justification under
international law.104 Treaty law enables breaches of international agreements underthe exception of non-performance (i.e. the inadimplenti non est adimplendumprinciple). Yet such a principle hardly applies to autonomous sanctions, whichrarely relate to the performance of reciprocal obligations. Retorsions andcountermeasures are other twomajor justifications for measures in apparent conflictwith international law. However, autonomous sanctions do not seem to share theunfriendly nature of retorsions, limited to a political or moral wrongfulness.105
Autonomous sanctions do not seem to fit in the category of countermeasures either,owing both to their unclear nature of foreign policy tools and to the controversyaround their adoption in the presence of erga omnes obligations.106Some have also stressed how sanctions of the kind discussed here would
inherently imply the existence of a centralised system (i.e. the UN), with an organcompetent to find a breach of a norm and to impose coercive measures to inducelegality (i.e. the Security Council).107 States and international organisations, suchas the EU, would thus have no competence to adopt sanctions outside the frameworkof such a centralised system. And this strict division of competence and taskswould derive from the deliberate agreement between sovereign states to set up theUN to secure international peace and security in the aftermath of the SecondWorldWar.108
In conclusion, listed individuals and entities could rely on their state ofcitizenship or residence to initiate a contentious or advisory proceeding before theICJ to claim the illegality of sanctions. Whereas the illegality of UN sanctions andrelated national (or regional) implementing measures may be challenging to prove,many are the arguments that could be relied upon to support the illegality of
102Treaty of Amity Economic Relations and Consular Rights between the United States and Iran 1955, 284 U.N.T.S.93.
103Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic ofIran v. United States), Order, 3 October 2018, General List no.175, esp. at para.69.
104 cf. M. Gestri, “Sanctions Imposed by the European Union: Legal and Institutional Aspect” in N. Ronzitti (ed.),Coercive Diplomacy, Sanctions and International Law (Leiden: Brill/Nijhoff, 2016), pp.70–102.
105See T. Giegerich, “Retorsions” (2011), paras 8–9, https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e983 [Accessed 6 November 2019].
106See UNCharter art.5; cf. P.E. Dupont, “Countermeasures and Collective Security: The Case of the EU Sanctionsagainst Iran” (2012) 17 Journal of Conflict Security Law 301, 320–321.
107A. Pellet and A. Miron, “Sanctions” (2013), paras 8–9, 64–65, https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e984 [Accessed 6 November 2019].
108 See J.A. Burke, “Economic Sanctions against the Russian Federation are Illegal under Public InternationalLaw” (2015) 3(3) Russian Law Journal 126.
autonomous sanctions. In essence, autonomous sanctions appear to conflict witha variety of international law sources, while lacking any solid legal justification.The ICJ thus represents an interesting avenue to challenge the compatibility of atleast certain categories of sanctions under international law.
ConclusionThis article aims to detect and investigate effective mechanisms for individualsand entities on EU and UN sanctions lists to challenge sanctions, and listingdecisions specifically.The article provides an overview of the experience of litigating sanctions in the
EU. It shows how, on the one hand, the EU courts seem willing to secure respectof primary EU constitutional principles and fundamental rights, recognisingjurisdiction over not only EU autonomous sanctions but also EU sanctions actsimplementing Security Council’s resolutions. On the other hand, however, the EUcourts appear reluctant to annul sanctions acts, as well as to grant damages andinterim measures. The one claim that has been proving successful before theEuropean judiciary concerns the lack of sufficient, adequate evidence supportinglistings; yet it is showing a much limited efficacy, as EU institutions are notprevented from re-listing individuals and entities, provided they collect satisfyingevidence the second time around.Consequently, the article identifies alternative claims and avenues for a more
effective strategy to litigate sanctions. These alternatives include claims beforethe EU courts supporting the criminal nature of sanctions or their critical impacton peremptory norms of jus cogens. They encompass promising avenues, includingnational courts, UN de-listingmechanisms and the ICJ. Especially the latter appearsa strategic forum to finally address one of the foreign policy issues subject toheated debate, namely the illegality of sanctions autonomously imposed by stateswithout the authorisation of the UN. If the ICJ were to affirm such illegality, itcould have the effect of recentralising the power to impose sanctions within theUN, in accordance with the UN Charter. It is therefore waiting for the first stateto raise a case.
Defeating Economic Sanctions in the EU: A Strategic Analysis of LitigationOptions 55
